Stephanie M. Lee
January 15, 2013

For American children with a sweet tooth, chile-flavored candies imported from Mexico can be just the thing to satisfy a craving.

But several years ago, many of the treats were found to contain high and undisclosed doses of lead, which can cause learning disabilities, behavioral problems, seizures and even death in young people.

In 2004, the Center for Environmental Health, an Oakland watchdog group, and other groups used a unique California law to sue major manufacturers for producing the toxic candies. The companies, which included subsidiaries of Mars and Hershey’s, later agreed to make the sweets safer and pay almost id=”mce_marker” million in penalties and fees.

The basis for the suit was Proposition 65, a 1986 voter-approved law that sets disclosure requirements for products that contain significant levels of chemicals known by the state to cause cancer or reproductive harm.

The law requires the state to keep a list of those chemicals. When hazardous levels are in products, homes, workplaces or the environment, failure to warn California consumers could subject businesses to a lawsuit from anyone. The daily penalty for noncompliance is as high as $2,500.

The law is the only one of its kind in the nation. Over the past two decades, Prop. 65 has led to a proliferation of warning signs around the state that are hard to miss, whether you’re pumping gas, drinking beer or parking your car.

Legal tool for citizens

Prop. 65 has given citizens and grassroots groups a legal tool to clean up toxic air emissions, correction fluids, nail care products, jewelry, purses, toys and hundreds of other unhealthy situations, advocates say.

It “allows us to be at the table with companies that are by definition illegally exposing people to toxic chemicals, so that is powerful and great in the public interest,” said Michael Green, executive director of the Center for Environmental Health, which frequently cites Prop. 65 in lawsuits.

But businesses argue that the law harms California’s economy, partly because there are so many listed substances that require disclosure – currently nearly 800.

“Almost everything is listed, including things that are actually necessary for life,” said Carol Brophy, a San Francisco attorney who defends businesses against Prop. 65 lawsuits.

The list may be about to get longer. Chemicals can be added by two state panels of health experts, and on Jan. 25, one of them will hold its annual meeting in Sacramento.

Who decides

That panel decides if chemicals are carcinogens, in accordance with a database compiled by the state’s Office of Environmental Health Hazard Assessment. Its eight experts are physicians and scientists from California Pacific Medical Center, the Cancer Prevention Institute of California in Fremont, UC Berkeley, California State University at Fresno, USC, UC Riverside and the Stanford University School of Medicine.

The other committee, which will meet Feb. 25, decides whether chemicals cause reproductive harm. Its nine members work at UCSF, Janssen Alzheimer Immunotherapy Research & Development in South San Francisco, UC Davis, UC San Diego, UC Irvine and Cal Poly San Luis Obispo.

All members are appointed by the governor. Together, the panels have used their authority to declare, for instance, that overconsumption of alcohol may lead to cancer, and that exposure to toluene, once widely used in nail care products, may cause birth defects. Businesses must then warn consumers whether listed chemicals exceed exposure levels set by the state.

Overall, the panels have voted for one-third of the chemicals now listed under Proposition 65. Other chemicals have qualified after being identified as harmful by health authorities that include the U.S. Environmental Protection Agency, the U.S. Food and Drug Administration and the International Agency for Research on Cancer. Still others have been added by state agencies, the state labor code and other federal agencies.

A core question

For panel member David Eastmond, the debate boils down to a core question: “Do I believe this chemical is clearly shown through scientific testing to cause cancer?”

This month, Eastmond’s committee will vote on two potentially cancer-causing chemicals: C.I. Disperse Yellow 3, a dye used to color clothes and carpeting products, and DMNM, which is used in industrial processes. Both have been tested for carcinogenicity in animals.

Most chemicals that come up for consideration now are not well known, since the obvious carcinogens, like arsenic and formaldehyde, are already listed. So members can spend weeks poring over studies to form a conclusion.

‘Personal interpretation’

The debate can get heated. Four years ago, Eastmond, a UC Riverside cell biology professor, found himself the lone dissenter when everyone else on the panel voted to declare marijuana smoke a carcinogen.

“It really came down to a personal interpretation of the evidence and not what I personally hoped or thought would be the case,” he said. “I think marijuana smoke would be carcinogenic, but at the time I felt the evidence wasn’t sufficient to be listed.”

At other times, panels hold back. In 2009, the developmental toxic substances panel outraged health advocates by concluding that there wasn’t enough proof to list bisphenol-A, a chemical widely used in making plastic.

And sometimes the panels can be as controversial as the chemicals. Last year, Gov. Jerry Brown removed Dr. La Donna Porter from the developmental toxicant committee after she appeared in an ad funded by the tobacco industry opposing Proposition 29, the unsuccessful 2012 ballot measure that would have imposed an additional tax on tobacco to fund cancer research.

Critics’ charges

As Prop. 65 enters its 27th year, critics say the warning signs it has generated have become so ubiquitous they are virtually meaningless. They also argue that because anyone can file a lawsuit under it, it has turned into a moneymaking mechanism for attorneys.

In 2011, more than 300 Prop. 65 cases were settled for id=”mce_marker”6.3 million, but less than $400,000 went to the state’s attorney general.

Those figures don’t reflect how much money companies have spent to prevent lawsuits and defend themselves from them, said Brophy, the attorney. “I don’t even think we even have ways to measure the negative impact on the business community that Proposition 65 has motivated,” she said.

But Green of the Center for Environmental Health said the loss to businesses is far outweighed by the hundreds of lawsuits that have benefited the public.

“If someone brings a lawsuit that the result of it is to protect kids from lead, and that’s the final outcome, I think that’s a good thing,” he said. “I think that says it all.”

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